In perhaps the first published decision since the amended Federal Rules took effect on December 6, 2015, United States Magistrate Judge James C. Francis IV, a preeminent judicial e-discovery authority, relied upon amended Rule 37(e) and, somewhat controversially, his inherent authority, to sanction a litigant for evidence tampering and spoliation. The opinion is significant, not solely because it invokes the newly-minted rule, but because it interprets amended Rule 37(e) as not foreclosing the court’s inherent authority as a viable alternative to sanction spoliation-related conduct that may not strictly satisfy the new Rule’s elements.

In 2000, the European Commission and U.S. Department of Commerce developed the so-called “U.S.-E.U. Safe-Harbor Framework” as a way to foster data transfer between the United States and E.U. countries notwithstanding concerns that U.S. privacy laws do not offer the same level of protection as E.U. laws with respect to personally identifiable information. As part of the safe-harbor framework, companies that choose to enter the program must publicly declare compliance with the safe-harbor requirements, which include adherence to seven privacy principles touching on the areas of notice, access, data integrity, individual choice (opt in/out rules), security, third-party transfer, and enforcement. The principle of “enforcement” includes making sure that procedures are in place to verify a company’s adherence to the rules and a sanctions regime sufficient to ensure compliance.

Effective September 1, 2012, Florida joined the long list of states that have adopted specific rules of procedure governing electronic discovery, which follows the July 5, 2012, announcement by the Supreme Court of Florida of its proposed amendments to seven civil procedure rules aimed at addressing the specific dilemmas facing litigants when e-discovery is sought. Florida’s Supreme Court approved and adopted the amendments in a formal opinion issued on July 5, 2012. While these amendments generally mirror the amendments to the Federal Rules of Civil Procedure first adopted by the United States Supreme Court in 2006, they diverge from the Federal Rules in some critical areas.

To echo a popular tag line frequently heard on Top 40 radio stations, when it comes to court-imposed sanctions for e-discovery failures, “the hits just keep on comin’!” According to a recent study published in the Duke Law Journal, sanctions for e-discovery violations are occurring more frequently than ever. Dan H. Willoughby, Jr., Rose Hunter Jones, Gregory R. Antine, Sanctions for E-Discovery Violations: By The Numbers, 60 Duke Law J. 789 (2010). However, there may be light at the end of the tunnel, as it appears that the frequency of sanctions awards is trending downward after hitting an all-time high in 2009.

The decision in Mt. Hawley Insurance Company v. Felman Production, Inc. demonstrates the importance of a court-approved stipulation regarding the production of electronically stored information (“ESI”). The court in Mt. Hawley found that the plaintiff had waived the attorney-client privilege and work product doctrine for certain documents because counsel had failed to take “reasonable precautions” to ensure that such otherwise privileged documents were not inadvertently disclosed. Such precautions should have included, for example, sampling its production and not delaying to recover privileged documents after their production was known. Importantly, the parties had not agreed to a non-waiver provision when negotiating the production of ESI, as permitted by Fed. R. Evid. 502 (“Rule 502”). Magistrate Judge Stanley’s decision ultimately was affirmed by Judge Robert C. Chambers in Felman Productions, Inc. v. Industrial Risk Insurers.

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